Self Defense Use of Force justified?

[psehorne]

What Penal Code, if any, justifies the use of force for self defense from assault? Penal Code 9.31 generically provides for self defense use of force.

PC 9.31. SELF-DEFENSE. (a) Except as provided in Subsection
(b), a person is justified in using force against another when and to the
degree the actor reasonably believes the force is immediately necessary
to protect the actor against the other's use or attempted use of
unlawful force.

However, it goes on to state

The actor's belief that the force was immediately
necessary as described by this subsection is presumed to be reasonable
if the actor:
(1) knew or had reason to believe that the person against whoi
the force was used:
(A) unlawfully and with force entered, or was attempting to
enter unlawfully and with force, the actor's occupied habitation, vehicle,
or place of business or employment;
(B) unlawfully and with force removed, or was attempting to
remove unlawfully and with force, the actor from the actor's habitation,
vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping,
murder, sexual assault, aggravated sexual assault, robbery,
or aggravated robbery;

Notice that plain old 'assault' is conspicuously absent. Sexual assault is mentioned, but not just plain old 'assault'. Forceable entry into your occupied home, place of business, or vehicle is mentioned, or an attempt to remove one from either of these three places. But just plain old mugging is not mentioned.

9.31 it does not specifically prohibit use of force in self defense against assault, and the first section would imply that use of force is justified in situations other than those specifically mention in (a)(1)(A), (B), and (C). I assume that is the intent, but one (a hungry prosecutor) could argue that only those situations mentioned justify use of force.

It is only logical to assume that use of force is justified just to prevent assault (for example, assault over a disagreement, not one of the listed crimes). I just haven't read whether plain old assault is covered, except in the generic wording that beings 9.31 above.

This is all so complicated. It would be very easy to get yourself in deep trouble, innocently trying to defend yourself. I'm just trying to be properly informed. This is all new to me and more complicated than I ever dreamed.

[Kythas]

For deadly force to be justified in the State of Texas, the person using deadly force must, at the time force was used, believe he was in imminent danger of death or bodily harm.

Deadly force is also justified in preventing arson, burglary, robbery, theft during the night time, or criminal mischief during the night time, if the person using the force reasonably believes there was no other way to stop the crime. Deadly force is also justified to prevent a person from fleeing after committing any of these acts.

Also, as to "Reasonable Belief", the following definition is given in the law: "It is not necessary that there should be actual danger, as a person has the right to defend his life and person from apparent danger as fully and to the same extent as he would have were the danger real, as it reasonably appeared to him from his standpoint at the time."

But be aware of the following:

"Even though a person is justified in threatening or using force or deadly force against another in self defense or defense of others or property as described in the statute, if in doing so he also recklessly injures or kills an innocent third person, the justification for deadly force is unavailable."

"A person acts recklessly when he is aware of but consciously disregards a substantial and unjustifiable risk with respect to the circumstances surrounding his conduct or the results of his conduct. The risk must be of such a nature and degree that its disregard constitutes a gross deviation of the standard of care that an ordinary person would exercise, viewed from the person's standpoint under all the circumstances existing at the time."


Of course, IANAL nor did I stay at a Holiday Inn Express last night.

[Dudley]

It sounds like you don't get the presumption, so your lawyer has to show the affirmative defense.

[Kythas]

It sounds like you don't get the presumption, so your lawyer has to show the affirmative defense.

That's a good point. Where does the Castle Doctrine come into play with presumption? Since the Castle Doctrine applies to your home, your car, and anywhere you have a legal right to be, does the presumption which is included in the Castle Doctrine apply to the "anywhere you have a legal right to be"? Or does it merely remove the duty to retreat and presumption only applies to your home and vehicle?

[C-dub]

But the OP isn't asking about deadly force. He is only asking about force. What legal right does an assaultee have to defend him or herself and beat the ever loving tar out of the assaulter?

[psehorne]

It sounds like you don't get the presumption, so your lawyer has to show the affirmative defense.

It took me a second reading of your statement and a few minutes thought before I got it. I understand what you are saying: In any of the listed situations (robbery, etc) it is presumed that force was justified. For plain old assault you don't get the presumption, although use of force likely is justified.

So, my conclusion is that in the case of the listed crimes it is (more) likely that no charges would be filed against the one defending themselves or their property, than in the case of plain old assault.

[LaserTex]

If you are getting the tar beat out of you by a 9 year old black belt....depends on how skirrid ya were when he was a doin' it. as long as he doesn't take your wallet.


D

[psehorne]

But the OP isn't asking about deadly force. He is only asking about force. What legal right does an assaultee have to defend him or herself and beat the ever loving tar out of the assaulter?

Glad you mentioned deadly force. 9.32 addresses that:

PC 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A
person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other
under Section 9.31; and
(2) when and to the degree the actor reasonably believes the
deadly force is immediately necessary:
(A) to protect the actor against the other's use or attempted use
of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated
kidnapping, murder, sexual assault, aggravated sexual assault, robbery,
or aggravated robbery.